Mills v. State

717 S.W.2d 409, 1986 Tex. App. LEXIS 8477
Procedural entryThis page is a short order in Mills v. State. Read the opinion of the Court — 1987 Tex. App. LEXIS 9214
Court of Appeals of Texas·Decided August 26, 1986·No. No. 6-85-122-CR·Published

Opinion

GRANT, Justice.

Michael Lynn Mills appeals his conviction for the offense of attempted capital murder, for which he was sentenced to forty years confinement in the Texas Department of Corrections.

Mills raises nine grounds of error on appeal. The first four grounds concern the sufficiency of the evidence. Two grounds relate to the admission of evidence concerning an alleged kidnapping. The last three grounds relate to the jury charge.

The evidence indicates that a meeting was held at the home of James Foote on January 9, 1985. Mills was present at the meeting as were Lisa Bouvier, James Foote, Daniel Necker and George Thomas Mars. The discussion at the meeting centered on the commission of a crime in order to obtain a large sum of money. Foote suggested kidnapping Amy McNeil, a girl [411]*411he knew who lived in Alvarado. On January 10, 1985, Bouvier, Foote and Necker traveled to Alvarado to look at the McNeil home. They returned to meet with the others on the same day.

On the morning of January 11, 1985, Mark McNeil and his sister Amy were on their way to school when their vehicle was forced off the road by three masked men. One of the men placed a shotgun to Mark’s head while the other two forceably removed Amy from the vehicle and placed her on the rear floorboard of their car. Mark was given instructions by one of the men, and he returned home and informed his mother of what had happened. She in turn informed his father, who notified the police.

The four men took Amy McNeil to the Foote home and Lisa Bouvier was charged with caring for her. Amy’s father was called. They instructed him to obtain $100,000 in cash. The following day, the men, all armed with shotguns and pistols, and Lisa Bouvier left the house in a stolen car. They carried Amy McNeil, the kidnapped victim, with them.

After driving a circuitous route, the group proceeded to the place designated for McNeil to bring the money. Mills was driving the vehicle, and en route the group concluded that they were being followed by the police. Shots were then fired from the vehicle. Bouvier testified they were going to take a hostage at a filling station or house. The car was going too fast to stop at the filling station and stopped in a yard near a house in Saltillo. Lisa and Amy got on the floorboard. Mills, Barnes and Foote got out of the car.

Shots were exchanged, and when the shooting stopped, Mills and Foote were lying on the ground in front of a van which was parked in the yard. Mills raised his ha,nds and surrendered to Texas Rangers Bill Gunn, Howard Alford and John Dendy, who had been among the pursuing officers.

The portion of the indictment pertinent to the issues raised on appeal charged that:

Michael Lynn Mills ... did ... intentionally, with the specific intent to commit the offense of capital murder of John Dendy, ... intentionally shoot a gun at and in the direction of John Dendy who was then and there a peace officer acting in the lawful discharge of an official duty and who the said defendant knew was a peace officer, which said act amounted to more than mere preparation that tended but failed to effect the commission of the offense intended,....

Mills contends that the evidence is insufficient to show that he or anyone in his group intentionally shot at John Dendy.

In reviewing the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the verdict, any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Gardner v. State, 699 S.W.2d 831 (Tex.Crim. App.1985); Brandley v. State, 691 S.W.2d 699 (Tex.Crim.App.1985); Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983).

The evidence shows that Mills was present during the planning of the kidnapping, that he was with the group that left to commit the crime, that it was Mills and Barnes who brought the kidnapped victim into the house, that Mills was armed during the episode, and that Mills was driving the vehicle when the group went to pick up the ransom money and during the chase by the law enforcement officers. The evidence further shows that Mills made all the plans as to where the money exchange would take place. The evidence further reveals that at the time of the capture, Foote was in possession of a sawed-off shotgun and a .38 Smith and Wesson pistol was thrown across the hood of the car near where Mills was found. The pistol had two spent cartridges, indicating that it had been fired, and four unfired rounds.

The evidence thus clearly shows that Mills was involved with the other men in the commission of a crime. We find that there was sufficient circumstantial evidence to indicate that he fired shots at the [412]*412law enforcement officers, but even if this evidence were insufficient, as a party to the act he would be responsible for shots fired by other parties. Tex.Penal Code Ann. § 7.01 (Vernon 1974). The common purpose of the kidnappers was to collect the ransom and to escape apprehension.

Mills contends that there is no evidence to show that any of the kidnappers directed their fire at John Dendy as set forth in the indictment. Dendy testified as follows:

Q And you returned fire on the people that were firing at you?
A Yes, sir.
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Q Ranger, when you were at the location in Saltillo and once you exited your vehicle and fire was started, gunfire started, was there any question in your mind that they were firing at you?
A No.
Q Or in your direction?
A No.
Q Was there more than one shot fired?
A Yes, sir.
Q Was there any question in your mind that they were trying to kill you?
A Not at that time, no.
On cross-examination, Dendy testified as follows:
Q But you are not here today to swear exactly what it [referring to the gun that was firing] was pointed at?
A No, sir.
Q Isn’t it a fact that there was multiple targets out there? If somebody was shooting at something that there were many things they could have been shooting at?
A I don’t understand your question.
Q At least six officers and three cars in pursuit?
A Yes, sir.

While the evidence does not directly show that Dendy was being fired at as an isolated target, we find that it is sufficient to show that he was part of a group which was being fired upon.

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Mills v. State, 717 S.W.2d 409, 1986 Tex. App. LEXIS 8477 (Tex. Ct. App. 1986).

717 S.W.2d 409 (Mills v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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